An important point demonstrated in this chapter, by comparison with previous chapters, is the difference between bulk sequence applications and the patents that are likely to evolve from them. Granted patents that provide exclusionary rights based on sequences from Arabidopsis are often very-much restricted in claims scope than their parent applications. So, while the claims made in bulk sequence applications by companies such as Paradigm and Mendel may be broad, descendent patents appear to be reasonably limited in scope.
In one sense this is an entirely obvious, and not unreasonable observation. Patent applicants often attempt in the first instance to claim the maximum range possible, and these claims end up being moderated and limited by rounds of revisions required by patent examiners. This is a common feature of patent applications and is not limited to applications containing sequences. In fact such a strategy is almost enshrined, if not promoted, by many patenting systems.
As stated in a previous chapter, granted patents are not necessarily the problem (although some may argue with this!). Instead, it is the uncertainty generated by the ability of large companies to make such bulk sequence applications that may cause problems for those working with Arabidopsis (and flowering plants). The process of setting early priority dates with bulk applications and then keeping these applications pending through chains of continuations, continuations-in-part, and divisional applications, results in the following:
- Long latency periods (uncertainty in patenting intentions for large period sof time, often years)
- Uncertainty in which sequences, if any, will be granted patents (and when this will happen)
- Uncertainty as to the scope of eventual granted claims
Such uncertainty may not be at the forefront of much not-for-profit research, it will however be pivotal in decisions made by private R&D companies, where FTO is critical. With the growing need for collaboration between not-for-profits, Universities, and private industry, such uncertainty is a growing concern for university researchers and not-for-profits.
This uncertainty has the potential to prevent innovation – a result which would be in conflict with the intent of the patent system.